Joseph Mpala v Ministry of Education, Sports and Culture

### Preamble
IN THE LABOUR COURT
JUDGMENT LC/H/409/2013
HARARE, 1 AUGUST 2013
CASE NO. LC/H/557/12
AND 13 SEPTEMBER 2013
JUDGMENT NO. LC/H/409/2013
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IN THE LABOUR COURT 			JUDGMENT LC/H/409/2013

HARARE, 1 AUGUST 2013				CASE NO. LC/H/557/12

AND 13 SEPTEMBER 2013

In the matter between

JOSEPH MPALA					-	Appellant

And

MINISTRY OF EDUCATION, SPORTS		 -	Respondent

AND CULTURE

Before The Honourable B.T. Chivizhe: President

For Appellant    :Mr. F. Murisi – Murisi and Partners (Legal Practitioners)

For Respondent:Mr. K. Warinda – Civil Division, A.G’s Office

CHIVIZHE, B.T.:

The matter was placed before me as an appeal against the determination by the Public Service Commission confirming the decision by the Respondent to discharge the Appellant from employment with effect from after duty on 9 November 2009.

The Appellant was employed in the Ministry of Education, Sports and Culture based at Chinhoyi High School.  He was arrested in October, 2009 on allegations of murder after he allegedly assaulted a school child to death.  He was granted bail by the High Court and consequently the Respondent suspended him from duty from around the 3rd December 2009.  The Appellant was subsequently dismissed in August 2010 in terms of Section 63 (b) of the Public Service Regulations, Statutory Instrument 1 of 2000.  The matter was referred on review to the Public Service Commission. That body then confirmed the decision by the Respondent to discharge the Appellant from employment.  The Appellant is appealing against both his suspension and his consequent discharge from service.

The grounds of appeal on which the appeal is noted are as follows;

The Tribunal a quo erred in failing to appreciate that after Respondent had acted in terms of Section 48 (1) of the Public Service Regulations, Statutory Instrument 1 of 2000, “the Regulations” by suspending the Appellant, it could not then purport to act in terms of Section 63(b) of the Regulations.

The Tribunal a quo erred in failing to appreciate that after Respondent had suspended Appellant in terms of Section 48 (1) of the Regulations, it was duty bound to institute disciplinary proceedings against the Appellant forthwith in terms of Section 48 (3) of the Regulations.

The Tribunal a quo failed to appreciate that the Respondent’s decision to discharge the Appellant from its employ was biased and malicious as it was only a move calculated to remedy the unlawful status of Appellant’s suspension, which issue Appellant’s then Legal Practitioners had raised.

In any case, the Tribunal a quo misdirected itself in failing to appreciate that the Respondent’s exercise of its discretion to discharge the Appellant in terms of Section 63(b) of the Regulations was reasonable and improper in the circumstances.

The Tribunal a quo misdirected itself in failing to appreciate that the Appellant had a legitimate expectation to be heard before his discharge in terms of audi alterum partem rule.”

The Respondent has taken a point in limine.  The point is that the appeal presently before the court is fatally defective because the Appellant has cited as Respondent the Ministry of Education, Sports and Culture.  It is Respondent’s contention that the Ministry is not a competent party because it is not a legal persona.  Respondent has referred for this proposition to the case of Gariya Safaris (Pvt) Ltd vs Van Wyk 1996 (2) ZLR 246 (H). The Respondent further submitted that in terms of Section 3 of the State Liabilities Act [Chapter 8:14] the Appellant should have cited the appropriate Minister and not the Ministry as Respondent.

In response the Appellant submitted that; as the issue is only being raised for the first time in Respondent’s Heads of Argument instead of being raised in Respondent opposing papers the court ought to dismiss the point; that the Respondent  cannot  raise the technical point as at this stage of the proceedings; that in the event that the Respondent’s submission finds favour with the court then the Appellant is seeking for leave from the court to correct the anomaly by joining the Public Service Commission as a party; that under Section 3 of the State Liabilities Act [Chapter 8:14] there is anyway an option to cite the Minister/Ministry as the nominal defendant in a cause of action, that the circumstances were different from the Gariya case cited by the Respondent; that in any event the courts generally loathe to resolve labour disputes on technicality and therefore the court should dismiss the point in limine and allow the matter to proceed to be heard on the merits.

The Respondent has in my considered view raised a valid point in limine.    Contrary to submissions by Appellant counsel Section 3 of the State Liabilities [Act Chapter 8:14] does not give an option to cite either the Ministry or the Minister.  It clearly indicates that the Minister should be cited as defendant in any legal action.  Section 3 of the State Liabilities Act [Chapter 8:14] reads;

“In any action or other proceedings which are instituted by virtue of section two, the Plaintiff, the applicant or the petitioner, as the case may be, may make the Minister to who the headship of the Ministry or department concerned has been assigned nominal defendant or respondent.”

Although the point was not raised by Respondent in its opposing papers the point, being, in my view, a point of law could have been raised at any stage of the proceedings.  The point being raised is that the Appellant having cited the Ministry instead of the Minister, there is no Respondent before the Court whose actions are being impugned by this appeal.  It is a trite principle that proceedings can only be valid if they are brought against an identifiable Respondent.  The Court has been aptly referred to Gariya decision by the Respondent.

The Appellant’s Counsel has sought to correct the anomaly by orally seeking for leave from the court to amend his papers to substitute the Public Service Commission.  The correct procedure in my view would be for Appellant to by way of a formal application seek the substitution of the Public Service Commission in place of ‘the Ministry’.

There is accordingly no appeal before the court and the purported notice of appeal should be struck off the roll.

It is accordingly ordered as follows:

The point in limine is upheld.

The notice of appeal is hereby struck off the roll with no order as to costs.

Murisi & Associates – Appellant’s Legal Practitioners

Civil Division – Respondent’s Legal Practitioners